The consultation paper is wide-ranging and contains numerous proposals for expanding the reach of the legislation, to entities such as companies operating private ATM machines, certain forms of gambling, dealers of valuable items, company service providers, etc. It examines problems related to identifying beneficial ownership of companies and looks at interesting problems like politically exposed persons, the regulation of "structuring" (usually called "smurfing") and the sharing of information between the government and private parties.

Feedback to the paper must be provided by April 30, 2018. An excellent overview of the paper, by Jacqueline Shinfield of the Blakes law firm, can be found here. On a side note, the role of lawyers in the AML/ATF matrix, and particularly the balance of obligations to uphold the law and maintain client confidentiality, continues to be controversial.

17 October 2017

I am delighted to once again present a guest blog post from my friend and co-author, Dr. Joseph Rikhof, the recently-retired Manager of the Law at the War Crimes Program, Justice Canada. Below he discusses the Supreme Court of Canada's recent decision in India v. Badesha, a closely-watched case on the controversial topic of diplomatic assurances in extradition cases. Prof. Joanna Harrington and I blogged on the BC Court of Appeal's decision in the case, which you can read here.

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Assurances in extradition law; the recent decision of the Supreme Court of Canada in the India v. Badesha case

On September 8, 2017 the Supreme Court rendered a decision in the Badesha case.[1] This case involved the request from India to have Surjit Singh Badesha and Malkit Kaur Sidhu extradited to stand trial for conspiracy to commit the murder of Jaswinder Kaur Sidhu, whose body was discovered on June 9, 2000 in a village in the Indian state of Punjab. It was the theory of the Indian government that she had been the victim of an honour killing arranged by the accused, who are the victim's uncle and mother and both Canadian citizens living in Canada, and carried out by eleven co-accused, some of whom had already been tried in India.

After an extradition hearing, Mr. Badesha and Ms. Sidhu were committed for surrender. The Minister of Justice then ordered their surrender to India after determining, in accordance with section 44(1)(a) of the Extradition Act, that it would not be unjust or oppressive to do so. Mr. Badesha and Ms. Sidhu applied for judicial review of the Minister’s decision to the British Columbia Court of Appeal. A majority of the court concluded that it was unreasonable for the Minister to find that surrendering Mr. Badesha and Ms. Sidhu would not be unjust or oppressive in the circumstances. Accordingly, the majority ordered that the Minister’s decision be set aside and that the matter be remitted to the Minister for further consideration. The Attorney General of Canada appealed from that order.[2]

The importance of the Supreme Court decision lies in the reliance on diplomatic assurances provided by a country to where a person will be extradited and where concerns have been raised about the human rights situation in that country. In this case the appellants had argued to the Minister that the surrender was unjust or oppressive as there was no guarantee India would honour a death penalty assurance; that they would not have a fair trial in India; that prison conditions in India would be inhumane given their advanced age and health problems. The Minister had received assurances from the government of India to counter such allegations, specifically that no death penalty would be imposed; that even though a fair trial should be assumed, Canadian officials would be allowed to attend the court proceedings on request; that India would provide required medical care and medications and make every reasonable effort to ensure their safety and consular access while in custody in India.[3]

The Supreme Court indicated that the general principles with respect to assurances in extradition law are that, in assessing whether there is a substantial risk of torture or mistreatment, diplomatic assurances regarding the treatment of the person sought may be taken into account by the Minister and that where the Minister has determined that such a risk of torture or mistreatment exists and that assurances are therefore needed, the reviewing court must consider whether the Minister has reasonably concluded that, based on the assurances provided, there is no substantial risk of torture or mistreatment.[4]

The court then, relying on the jurisprudence of the European Court of Human Rights, provided the following legal framework for the acceptance of assurances from third states:

whether the assurances are specific or are general and vague;

who has given the assurances and whether that person can bind the receiving state;

if the assurances have been issued by the central government of the receiving state, whether local authorities can be expected to abide by them;

whether the assurances concern treatment which is legal or illegal in the receiving state;

the length and strength of bilateral relations between the sending and receiving states, including the receiving state’s record in abiding by similar assurances;

whether compliance with the assurances can be objectively verified through diplomatic or other monitoring mechanisms, including providing unfettered access to the individual’s lawyers;

whether there is an effective system of protection against torture in the receiving state, including whether it is willing to cooperate with international monitoring mechanisms (including international human rights NGOs) and whether it is willing to investigate allegations of torture and to punish those responsible; and

whether the individual has previously been ill-treated in the receiving state.[5]

The court was of the view that the assurances received from the government of India were sufficient within this framework, taking especially into account the fact that there was no history of India not complying with assurances given to its treaty partners; that there had been no evidence of any corruption, intimidation or torture involved in India’s investigation of Mr. Badesha, Ms. Sidhu or any of the eleven co-accused; that there was no evidence that the seven co-accused found guilty at trial were mistreated while in prison in India; and that there was also no evidence that Ms. Sidhu and Mr. Badesha had personal characteristics that would make them part of a category of individuals who would be particular targets of ill-treatment in India because of their political or religious affiliations.[6] The court also took into account the nature and gravity of the crime, which was criminal conduct of the most horrific nature, namely participation in a conspiracy to commit the honour killing of a family member.[7] As a result the surrender decision by the Minister was found to be reasonable.[8]

This decision by the Supreme Court can be compared and in some respect contrasted with a recent extradition decision in the UK of July 28, 2017[9] by the High Court of Justice. This appeal case involved the second request for extradition by Rwanda for four persons involved in the 1994 genocide in that country. The first request had been denied in 2009 by the same court as a result of fair trial concerns in Rwanda related to the independence of the judiciary and the safety of defence witnesses.[10] This time, the court again refused extradition for a number of reasons, which were again related to the fairness of the trial,[11] but primarily because of the lack of sufficient legal representation for the defendants in such trials in Rwanda[12] while providing a stark comment about the general legal system in Rwanda:

… the evidence suggests that Rwanda has, if anything, become more of an illiberal and authoritarian state than was the case in 2008/2009. … we are struck by the fact that these renewed requests from the GoR, relying on improvements in the legal system, come from a state which, in very recent times, has instigated political killings, and has led British police to warn Rwandan nationals living in Britain of credible plans to kill them on the part of that state.[13]

However, in spite of these shortcomings in the legal process in Rwanda, the court was of the view that they could be remedied by the government of Rwanda providing assurances while echoing some of the sentiments by the Supreme Court of Canada, but in reverse, in saying:

Given the seriousness of the offences alleged here, we are prepared to permit the Appellant a final opportunity to seek to assure the Court that credible and verifiable conditions will be in place, to overcome the legal bar to extradition upheld above. It should by no means be assumed that such assurances will successfully overcome the bar to extradition given the historical failure of the Appellant to cooperate in prosecutions in England, the serious concerns articulated earlier in this judgment, the length of time that has passed and the inherent difficulty of being able to rely on assurances. However, it seems to us right that the opportunity should be afforded to the Appellant to persuade us that satisfactory assurances can be given. Given the very long history here, there can be no question of any long delay before the matter is finally resolved.

On the facts of this case, any successful future assurances or guarantees would have to be detailed, formal and underpinned with significant diplomatic weight. They would have to include at least (1) adequate funding for investigation and development of defence cases and for representation in Court by experienced and properly resourced advocates, (2) assurance of admission to the Rwandan Bar for suitably qualified and experienced foreign lawyers as defence counsel, where desired, and (3) inclusion of at least one non-Rwandan judge in any trial, such judge to be suitably experienced and independent of any connection with the Government of Rwanda (for example an existing judge of another relevant international Court or tribunal).[14]

By way of post-script to the decision of the Supreme Court of Canada, firstly, the case in question has not resulted in the extradition of Badesha and Sidhu; while in transit in Toronto on their flight from Vancouver to India, the Court of Appeal of British Columbia agreed on September 21, 2017, to hear further arguments re their surrender, as a result of which they were returned to Vancouver and remanded into custody.[15]

Secondly, with respect to assurances, this notion also became a factor to consider in three Ministerial Directions on September 25, 2017 by the Minister of Public Safety to the RCMP, CSIS and CBSA with the title “Avoiding Complicity in Mistreatment by Foreign Entities”; two of the three appendices to these directions state the following:

When there is a substantial risk that disclosing information to a foreign entity would result in the mistreatment of an individual, and officials are unable to determine if that risk can be mitigated through, for example, the use of caveats or assurances, the matter will be referred to the President of CBSA/Director of CSIS/Commissioner of the RCMP for decision.[16]

[5] Paragraph 51. For a recent analysis of diplomatic assurances, see Mariagiulia Giuffré, “Deportation with Assurances and Human Rights, The Case of Persons Suspected or Convicted of Serious Crimes, 15 Journal of International Criminal Justice (2017), 75-95.

[10] Vincent Brown aka Vincent Bajinja and others v. The Government of Rwanda and The Secretary of State for the Home Department (2009) EWHC 770 (Admin). Between October 2008 and May 2009 courts in Germany, France, Switzerland and Finland had also refused extradition for similar reasons until in May 2009 Sweden reversed this trend, which was upheld by the ECtHR in the case of Ahorugeze v. Sweden, Application No. 37075/09. That time, a number of countries have extradited or deported persons to Rwanda, namely Norway, Denmark, Canada and the Netherlands (see Government of Rwanda v Nteziryayo & Ors [2017] EWHC 1912 (Admin), paragraph 156 with a detailed overview of the trials of those persons in Rwanda in paragraphs 157-207).

25 September 2017

It has just been announced that one of the greats in the field of International Criminal Law, Professor M. Cherif Bassiouni, has passed away at the age of 79. If you do any amount of research in this area you will quickly encounter Bassiouni's work, and it is impossible to overstate his significance. Reporting can be found here.

21 March 2017

I have just posted a new draft paper entitled "Cross-Border Evidence Gathering in Transnational Criminal Investigation: Is the Microsoft Ireland Case the 'Next Frontier'?" The paper examines the currently roiled state of international law regarding the gathering of electronic evidence across borders by law enforcement officials. It specifically bears down on the issue of what are sometimes called "long-arm subpoenas," essentially demands by police in one state that individuals located in that state gather and produce evidence that is stored or otherwise located in another state. This has traditionally been an irritant between states but has become all the more relevant with regard to electronic data.

The issue has come to a head in the U.S. in the case of US. v. Microsoft, where police issued a warrant demanding that Microsoft produce data that was stored at its facility in Ireland. Microsoft refused on the basis that the warrant had inappropriate extraterritorial reach; both Irish sovereignty and Irish/EU law could be breached if Microsoft complied with the request. The Second Circuit Court of Appeals agreed with Microsoft, in a decision which will likely be appealed to the US Supreme Court but which dealt almost entirely with US procedural law and did not satisfactorily address the international law aspects (despite the fact that these were argued very ably by Microsoft and some of the interveners).

My paper focuses on the international law angle, in particular the customary international law prohibition on the extraterritorial exercise of enforcement jurisdiction. It concludes that, despite the fact that state practice is uneven, the best conclusion is that long-arm subpoenas breach the prohibition, and that effective solutions to this problem have to involve multilateral agreement of some kind.

The paper is under submission to a journal but the current working version can be found on SSRN here; the abstract is below. I welcome comments!

ABSTRACT: A recent and prominent American appeals court case has revived a controversial international law question: can a state compel an individual on its territory to obtain and produce material which the individual owns or controls, but which is stored on the territory of a foreign state? The case involved, United States v. Microsoft, features electronic data stored offshore which was sought in the context of a criminal prosecution. It highlights the current legal complexity surrounding the cross-border gathering of electronic evidence, which has produced friction and divergent state practice. The author here contends that the problems involved are best understood—and potentially resolved—via examination through the lens of the public international law of jurisdiction, and specifically the prohibition of extraterritorial enforcement jurisdiction. Analysis of state practice reveals that unsanctioned cross-border evidence gathering is viewed by states as an intrusion on territorial sovereignty, engaging the prohibition, and that this view properly extends to the kind of state activity dealt with in the Microsoft case.

25 January 2017

I'm pleased to host another guest post by Gillian MacNeil, doctoral student at Queen's who attended the ICC ASP meeting before Christmas (see her previous co-authored post here), funded by a SSHRC Partnership Grant on which I'm a co-investigator.

The Assembly of States Parties (ASP) of the International Criminal Court (ICC) met in The Hague between 15 and 24 November 2016 for their 15th Annual Session. At a side meeting, states discussed the proposal to create a multilateral mutual assistance and extradition treaty (MLAT) for genocide, war crimes and crimes against humanity. This initiative is being lead by Argentina, Slovenia, Belgium and the Netherlands. One argument in favour of this initiative is that there is a gap in the international legal framework. In this post I will briefly consider this gap. There are some rules which govern mutual legal assistance and extradition for genocide, war crimes and crimes against humanity. To highlight the “gap” I will contrast the relatively few provisions dealing with mutual legal assistance and extradition for those crimes with the much more detailed provisions found in some recent treaties governing other types of offences.

‘Mutual legal assistance’ refers to state cooperation in investigating and prosecuting crimes. Extradition is a legal proceeding through which an individual is transferred from one State to another to face a trial process or serve a previously imposed sentence.

Under the Rome Statute of the International Criminal Court (Rome Statute) the International Criminal Court (ICC) currently has jurisdiction over genocide, war crimes and crimes against humanity (article 5). States parties are obliged to cooperate with the Court (article 86). But the ICC is complementary to national jurisdictions (Article 1). States have the primary obligation to investigate and prosecute genocide, war crimes and crimes against humanity. However the Rome Statute does not contain provisions requiring that states cooperate with each other or detailing rules governing such cooperation.

The Rome Statute is not the only treaty relevant to genocide, war crimes and crimes against humanity. The 1948 Genocide Convention defines genocide and specifies the obligations of States parties. The rules on mutual legal assistance are largely confined to article VII which articulates some basic provisions governing extradition.

Similarly, the Geneva Conventions and the two Additional Protocols of 1977 which regulate the conduct of international and non-international armed conflicts contain detailed provisions but, few rules applicable to mutual legal assistance or extradition. For example, article 146 of the Fourth Geneva Convention requires Parties to criminalize grave breaches of the Convention and to search for persons alleged to have committed grave breaches. A State is also permitted to transfer an alleged violator to another State for prosecution. The provisions of Additional Protocol I are slightly more detailed, imposing obligations to assist with criminal proceedings for grave breaches and a qualified obligation to cooperate on extradition (article 88). Additional Protocol II, governing non-international armed conflicts, has no provisions on mutual legal assistance.

By contrast, the International Convention for the Suppression of Terrorist Bombings requires States to criminalize specific acts defined in the treaty and establishes mandatory and permissive bases of criminal jurisdiction (article 4, article 5, article 6). There are obligations of investigation and requirements to share information with other States having jurisdiction (article 7). States in which an alleged offender is present must submit the case to prosecution or extradite the alleged offender (article 8). The offences are deemed to be extraditable (article 9). Parties are barred from considering the offences to be political (article 11). There are rules governing the transfer of detainees (article 13). There are obligations to cooperate to prevent offences (article 15) and to assist with investigations and criminal or extradition proceedings (article 10).

As this brief comparison reveals, the instruments governing genocide, war crimes and crimes against humanity are largely lacking in the detailed, mandatory rules which can be found in other criminal law treaties. However, offence-specific treaties do not tell the whole story. The absence of detailed mutual legal assistance or extradition provisions in the treaties governing war crimes, genocide and crimes against humanity are not necessarily evidence of a legal void. States can cooperate to investigate and prosecute those offences. A detailed discussion of State cooperation is beyond the scope of this work; I will focus here on the Canadian example.

States may agree to rules governing cooperation and extradition for genocide, war crimes and crimes against humanity in bilateral mutual legal assistance or extradition treaties. To take one example, The Treaty Between the Government of Canada and the Government of the United States of America on Mutual Legal Assistance in Criminal Matters enables mutual legal assistance over offences. “Offences” are broadly defined in Article 1 of the Treaty and, under Canadian law, would include genocide, war crimes and crimes against humanity. A 1991 Protocol to the Canada-United States Extradition Treaty re-defined the offences subject to extradition. Extradition is now available for offences punishable by one year of incarceration, or “any greater punishment.” Again, under Canadian law this would include genocide, war crimes and crimes against humanity.

So, if States can cooperate to investigate and prosecute genocide, war crimes and crimes against humanity and to extradite offenders, one may wonder why a comprehensive mutual legal assistance and extradition treaty for those offences is needed. One answer may be clarity. A multilateral mutual legal assistance and extradition treaty would clarify and harmonize States’ basic mutual legal assistance and extradition obligations for genocide, war crimes and crimes against humanity. By becoming party to such a treaty, States would affirm not only that cooperation is permissible, but that it is required.

17 January 2017

I just finished giving a talk to a selection of the members of the International Association of Prosecutors. The members attended from all over the world, by way of a nifty online conferencing platform. The topic was the search of cell phones (and other electronic devices) at the border, a topic on which I have blogged here before.

I recently produced a paper on this topic, which was published in the Canadian Journal of Law & Technology. The article is not yet up on the journal's open-source website, but a copy can be found on my SSRN page, here. Below is the abstract for the article. It is focused on Canadian law and procedure, though some references to US law can be found in it as well.

Electronic Devices at the Border: The Next Frontier of Canadian Search & Seizure Law?

(2016) 14(2) Canadian Journal of Law & Technology 289

Abstract: Over the last several years the Supreme Court of Canada has developed its jurisprudence regarding the search and seizure of electronic devices, applying s.8 of the Canadian Charter of Rights and Freedoms in such a way as to assert and protect a significant amount of privacy in the devices and their data. Recent cases regarding the search of devices at Canada's borders, however, do not reflect this case law. This is a situation made all the more complex by the more generally attenuated expectation of privacy in the border context, and is worthy of inquiry. Using a pending border case as a leaping-off point, this paper explores how s.8 should be applied to searches of electronic devices in the possession of people entering Canada, concluding that an appropriate analysis would impose more robust privacy protection than has been seen to date. It also examines the issue of whether individuals can be compelled to unlock devices or surrender passwords during border searches.

17 November 2016

I am delighted to present a guest blog by Gillian MacNeil and Ayodele Akenroye. Gillian is the lead co-author of the state immunity chapter of both editions of International & Transnational Criminal Law, and is currently a Ph.D. candidate at the Queen's University Faculty of Law. Ayodele is a Ph.D. candidate at the McGill Faculty of Law. Both are attending the 15th Annual Meeting of the Assembly of States Parties (ASP) of the International Criminal Court, which is under way right now in The Hague.

Both of today's guest authors are attending the ASP meeting under the auspices of a brand-new multi-partner project entitled "Strengthening Justice for International Crimes: A Canadian Partnership." Funded by the Social Sciences and Humanities Research Council of Canada (SSHRC), this project is a partnership of leading Canadian international criminal justice scholars and their universities, as well as a number of civil society organizations like the Canadian Centre for International Justice and the Coalition for the International Criminal Court. With $2.5 million in funds over 5 years, this project seeks to advance Canadian knowledge and capacity in the fields of international and transnational criminal justice. I am very pleased to say that, with the support of the Schulich School of Law, I am a co-investigator on the project.

This project will, among many other things, enable students at Canadian law schools to be engaged in research, attend conferences and otherwise build their own knowledge and capacities in the field, all the while contributing to our work. Our very first effort has been to fund a group of students to attend the ASP meeting, all of whom are blogging, Tweeting (live or otherwise), collecting and publishing observations about the proceedings. That is the background of this very interesting article by Gillian and Ayodele.

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ASP 15: The International Criminal Court--Challenges and Opportunities

by Gillian MacNeil and Ayodele Akenroye

Between 16 to 24 November 2016, the Assembly of States Parties (ASP) of the International Criminal Court (ICC) consisting of 124 member States are meeting at the World Forum in The Hague for the Assembly’s 15th annual session. In thinking about the ICC, it is tempting to focus on the Court itself, or perhaps specific organs like the Office of the Prosecutor or the Judges or even the Trust Fund for Victims. However, the ASP is an integral part of the ICC’s structure; it is the Court’s governing body.

By some measures, the annual session will be taking place against a background of increasing successes by the Court; it has ten active investigations, nine cases in pretrial, five at the trial stage, one on appeal and three at the reparations stage. In the last year, it also recorded landmark convictions for sexual offences and destruction of cultural heritage.

However, those successes exist alongside some very real challenges. In this post we will use the recent notifications of withdrawal by South Africa, Burundi and The Gambia as a starting point for highlighting some of the issues facing the Court. The ICC is an important institution; one of its stated goals is to end impunity for international crimes and achieve justice for victims. But the communication from South Africa raised a number of concerns about the Court and linked some of those concerns to the Court’s credibility. If the ICC is to fulfill its goal, the active engagement of the ASP and the various member States in affirming and reinforcing the credibility of the Court, and addressing perceptions about its credibility, is required.

On 19 October 2016, South Africa communicated its withdrawal from the ICC. Burundi communicated its withdrawal on 27 October 2016. The Gambia followed with its withdrawal on 10 November 2016.

The South African official communication announcing its withdrawal contains a number of reasons for that withdrawal. In this post, we will offer comments on two of the reasons articulated in the communication:

that there is a perception that the ICC is focussed on Africa while failing to investigate offences occurring on the territories of non-African states; and

that there is a potential that South Africa’s obligations as a party to the Rome Statute and a member of the African Union may conflict and there is no satisfactory mechanism to resolve those potential conflicts.

Even cursory consideration reveals that these concerns have no easy answers. The ICC cannot necessarily address all situations of mass atrocity – there is a limit to its resources and jurisdiction. Unless the Security Council refers a situation, the ICC has jurisdiction only over crimes committed in the territories of States Parties to the Rome Statute or which are committed by nationals of State Parties to the Rome Statute. Some of the atrocities which are currently, deservedly, receiving a great deal of global attention are occurring on the territory of States which are not States Parties to the Rome Statute. Nationals of some States Parties may be involved in conflicts in which atrocities are occurring and, arguably, that could provide a basis for the Court to become involved. However, there are at least two significant hurdles. First, the Court operates on the principle of complementarity. The structure of the Rome Statute indicates that States have the primary obligation to investigate alleged crimes and submit cases to their own courts for prosecution when warranted. It is the States Parties which have the first duty to investigate and prosecute their citizens. Second, even if the Court were to investigate crimes alleged to have been committed by the national of a State Party, the Rome Statute does not suggest the Court could use that as a mechanism to investigate all the crimes committed in a situation which is not otherwise within the Court’s jurisdiction.

This of course does not answer the critique that there is a perception that the ICC has been (too) focussed on Africa. Of the ten situations currently under investigation, nine are in Africa. Of those, two were UN Security Council referrals (Libya and Sudan), five were referred to the Court by the States on whose territories the atrocities were being committed and one was the result of a State (Côte d’Ivoire) accepting the jurisdiction of the Court. In other words, in six of those nine African cases, the ICC is present at the invitation of the national governments. Of the ten situations which are currently in the preliminary examination phase, four are in Africa. However, the critique speaks of perceptions, and the ASP and Member States may be able to take steps to address those perceptions. Already the Secretary General of the United Nations - Ban Ki-moon and the President of the ASP - H.E. Mr. Sidiki Kaba - have both released statements supporting the Court in the face of the notifications of withdrawal by South Africa (see here) and Burundi (see here). The ASP and individual Member States can build on these affirmations and potentially use the 15th ASP as a forum to find ways to address the perception, clear in the South African communication, that the Court’s credibility has been damaged. As an essentially diplomatic task, it is also something which can be done outside the formal bounds of the annual session.

Like the question of perceptions, the issue of competing obligations is complex and we cannot address all the facets of that issue. Our observations will focus on the possibility that competing obligations will become problems of non-cooperation and the important role played by the ASP when a situation of non-cooperation is identified.

It is a basic principle of international law that parties to a treaty are to fulfill their obligations in good faith. Article 86 of the Rome Statute also imposes a specific obligation on Member States to cooperate with the Court in investigating and prosecution crimes within the Court’s jurisdiction.

But the Court has no ability to compel states to cooperate. Article 87(1) of the Rome Statute gives the Court authority to make requests for cooperation to States Parties and to invite cooperation from non-Parties. If a State Party fails to cooperate, the Court may make a finding of non-cooperation and refer the non-cooperation to the ASP or to the Security Council if the non-cooperation relates to a situation referred to the Court by the Security Council (Article 87(7)). So far, the ICC has made over ten findings of non-cooperation. As our focus here is on the ICC and the ASP, we will not comment on the range of responses open to the United Nations Security Council.

In 2011, the ASP adopted procedures relating to non-cooperation. The procedures are intended to apply to two types of non-cooperation: situations involving findings of non-cooperation by the Court and situations in which no formal finding has been referred to the ASP “but there are reasons to believe that a specific and serious incident of non-cooperation in respect of a request for arrest and surrender of a person...is about to occur or is currently ongoing and urgent action by the Assembly may help bring about cooperation.” The procedures document outlines a number of potential responses: some are informal, such as using the good offices of the ASP President. Others contemplate more formal actions such as open letters from the ASP President on behalf of the relevant ASP organ (the Bureau on Non-Cooperation) to the state concerned with copies to all States Parties, bilateral engagement by States Parties, reports by the Bureau to the Assembly, discussion of such reports during the Annual Session and possible use of Bureau resources to prepare a draft resolution containing concrete recommendations. To date, the procedures adopted have not resolved the issue of non-cooperation. The 2015 Report by the Bureau on Non-Cooperation makes it clear that non-cooperation by States Parties, and non-parties, remains an issue. However, the Report also makes it clear that the ASP and Member States remain engaged in efforts to encourage cooperation and continue to develop measures to prevent and address non-cooperation.

What we hope our brief discussion has highlighted is that importance of the Member States and the ASP in helping to ensure the ICC is able to fulfill its mandate.

30 May 2016

The long saga of former Chadian dictator Hissene Habre is finally drawing to a close. Today Habre was convicted by the Extraordinary African Chambers, a special internationalized court set up in the courts of Senegal to try Habre and others for international crimes committed during the period of Habre's dictatorship. The court convicted him for crimes against humanity, torture and war crimes (including the commission or ordering of various acts of rape and sexual slavery). He was sentenced to life in prison. There is a 15-day appeal period.

This is a remarkable event, capping off a long campaign by a group of Habre's victims to see him brought to justice, which involved at one point a case brought by Belgium against Senegal in the International Court of Justice, in which Belgium sought to hold Senegal to its obligation under the UN Torture Convention to extradite or prosecute Habre. It is the first case brought before a domestic African court on the basis of the universal jurisdiction principle.

09 May 2016

On April 29 the Supreme Court of Canada issued its decision inWorld Bank Group v. Wallace, a case that was being watched closely by the international community and particularly those engaged in transnational anti-corruption work. The Court ruled that the World Bank's personnel and archives were immune from a production order and subpoenas issued on behalf of two individuals who are being investigated under Canada's Corruption of Foreign Public Officials Act.

A brief backgrounder can be found here, and the headnote to the Court's decision can be found below.

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The World Bank Group is an international organization headquartered in Washington, D.C. composed of five separate organizations, including the International Bank for Reconstruction and Development (“IBRD”) and the International Development Association (“IDA”). Each constituent organization has its own set of governing documents which set out the immunities and privileges the organization is to enjoy in the territory of each member state.

The World Bank Group provides loans, guarantees, credits and grants for development projects and programs in developing countries. The World Bank Group was originally one of the primary lenders for the project at the heart of this case, the Padma Multipurpose Bridge in Bangladesh. SNC‑Lavalin Inc. was one of several companies bidding for a contract to supervise the construction of the bridge. The four individual respondents — three former employees of SNC‑Lavalin and one representative of a Bangladeshi official — allegedly conspired to bribe Bangladeshi officials to award the contract to SNC‑Lavalin. They are all charged with an offence under the Canadian Corruption of Foreign Public Officials Act.

The Integrity Vice Presidency (“INT”) is an independent unit within the World Bank Group responsible for investigating allegations of fraud, corruption and collusion in relation to projects financed by the World Bank Group. It was the INT that had initially received a series of emails from tipsters suggesting there was corruption in the process for awarding the supervision contract, involving SNC‑Lavalin employees. The INT later shared the tipsters’ emails, its own investigative reports and other documents with the Royal Canadian Mounted Police (“RCMP”).

The RCMP then sought and obtained authorizations to intercept private communications in order to obtain direct evidence of the accused’s participation in corruption, as well as a search warrant. Sgt. D was assigned to prepare affidavits for the application. He largely relied on information the INT shared based on its communications with the tipsters, as well as knowledge of the bidding process of a senior investigator with INT. Sgt. D also spoke directly to one of the tipsters. Sgt. D did not make any handwritten notes of his work as affiant. All of his emails for the period of the investigation were lost because of a computer problem, though many were recovered through other sources.

The Crown charged the four accused under the Corruption of Foreign Public Officials Act and joined their proceedings by direct indictment. The Crown intends to present intercepted communications at trial. For their part, the accused seek to challenge the wiretap authorizations pursuant to R. v. Garofoli, [1990] 2 S.C.R. 1421. In support of their application, the accused sought an order requiring production of certain INT records, as well as the validation of two subpoenas issued to the investigators of the INT.

However, the Articles of Agreement of the IBRD and the IDA provide that their archives shall be inviolable. In addition, the Articles of Agreement provide that all officers and employees shall be immune from legal process with respect to acts performed by them in their official capacity, except when the IBRD or the IDA waives this immunity. These immunities have been implemented in Canadian law by two Orders in Council, and the Articles of Agreement of the IBRD and the IDA have been approved by Parliament in their entirety through the Bretton Woods and Related Agreements Act.

Two issues were raised on the application: (1) whether the World Bank Group could be subject to a production order issued by a Canadian court given the immunities accorded to the IBRD and the IDA, and (2) if so, whether in the context of a challenge to the wiretap authorizations pursuant to R. v. Garofoli, the documents sought met the test for relevance.

With respect to the first issue, the trial judge found that the immunities and privileges claimed were prima facie applicable to the archives and personnel of the INT. However, he determined that the World Bank Group had waived these immunities by participating in the RCMP investigation. In any event, he was not persuaded that the documents at issue were “archives”. Moreover, in his view, the term “inviolable” in the Articles of Agreement connoted protection from search and seizure or confiscation, but not from production for inspection. On the second issue, the trial judge concluded that the documents were likely relevant to issues that would arise on a Garofoli application. Accordingly, he ordered that the documents be produced for review by the court.

Held: The appeal should be allowed and the production order set aside.

Notwithstanding its operational independence, the INT’s documents form part of either the IBRD’s or the IDA’s archives, and the INT’s personnel benefit from legal process immunity for acts performed in an official capacity. Because the Articles of Agreement of the IBRD and the IDA provide the legal foundation for the World Bank Group’s integrity regime, and by extension the INT, the immunities outlined in those Articles of Agreement shield the documents and personnel of the INT.

Section 3 of Articles VII and VIII of the IBRD’s and the IDA’s Articles of Agreement, respectively, which confirms that the IBRD and the IDA can be the subject of a lawsuit in a court of competent jurisdiction, is not engaged in the present appeal. The present appeal involves a request for document production directed at personnel of the INT in the context of criminal charges. It is not the kind of action contemplated by s. 3.

Nor are the immunities outlined in ss. 5 and 8 of Articles VII and VIII, respectively, “functional” in the sense that the immunities only apply where it has been demonstrated that their application is necessary for the organization to carry out its operations and responsibilities. The signatory states of the Articles of Agreement set out, in advance, the specific immunities that enable the IBRD and the IDA to fulfill their responsibilities. The very wording of s. 1 of Articles VII and VIII suggests that this was an explicit choice. To import an added condition of functional necessity would undermine what appears to be a conscious choice to enumerate specific immunities rather than to rely on a broad, functional grant of immunity.

As regards the inviolability of the organization’s archives, the trial judge erred in construing so narrowly an immunity that is integral to the independent functioning of international organizations. The immunity outlined in s. 5 shields the entire collection of stored documents of the IBRD and the IDA from both search and seizure and from compelled production. This broader interpretation is consistent with the plain and ordinary meaning of the terms of s. 5 and is in harmony with its object and purpose. Partial voluntary disclosure of some documents by the World Bank Group does not amount to a waiver of this immunity. Indeed, the archival immunity is not subject to waiver.

The personnel immunity also applies since the challenged subpoenas required Mr. Haynes and Mr. Kim to give evidence. It is uncontested that the INT personnel were performing acts in their official capacity when they obtained the information that the accused now seek. It is also undisputed that the scope of the legal process immunity in s. 8 of Articles VII and VIII shields employees acting in an official capacity from not only civil suit and prosecution, but from legal processes such as subpoenas. While this personnel immunity can be waived, the object and purpose of the treaty favour an express waiver requirement. Given the absence of such express waiver, the trial judge erred in his finding that the World Bank Group waived this immunity.

Even if the World Bank Group did not possess any of the immunities identified in the Articles of Agreement, the production order should not have been issued under the framework for third party production set out in R. v. O’Connor, [1995] 4 S.C.R. 411. A Garofoli application is more limited in scope than a typical O’Connor application, relating as it does to the admissibility of evidence, namely intercepted communications. An O’Connor application made in the context of a Garofoli application must be confined to the narrow issues that a Garofoli application is meant to address. The Garofoli framework assesses the reasonableness of a search when wiretaps are used to intercept private communications. A search will be reasonable if the statutory preconditions for a wiretap authorization have been met. A Garofoli application does not determine whether the allegations underlying the wiretap application are ultimately true — a matter to be decided at trial — but rather whether the affiant had a reasonable belief in the existence of the requisite statutory grounds. What matters is what the affiant knew or ought to have known at the time the affidavit in support of the wiretap authorization was sworn.

While the O’Connor process may be used to obtain records for purposes of a Garofoli application, the relevance threshold applicable to such an application is narrower than that on a typical O’Connor application. To obtain third party records in a Garofoli application an accused must show a reasonable likelihood that the records will be of probative value to the narrow issues in play on such an application. This test for third party production is also consistent with another form of discovery on a Garofoli application: cross‑examination of the affiant. Both forms of discovery serve similar purposes and engage similar policy concerns. The justifications that warrant limiting cross‑examination of the affiant apply with equal force to third party production applications. The “reasonable likelihood” threshold is appropriate to the Garofoli context and fair to the accused.

The trial judge erred in assessing the accused’s arguments. Although he correctly placed the burden on the accused, he did not properly assess the relevance of the documents being sought. In particular, he blurred the distinction in a Garofoli application between the affiant’s knowledge and the knowledge of others involved in the investigation. In this case, that distinction is crucial. While the documents sought may be relevant to the ultimate truth of the allegations in the affidavits, they are not reasonably likely to be of probative value to what Sgt. D knew or ought to have known since he did not consult them. The accused have not shown that it was unreasonable for him to rely on the information he received from the INT and other officers. Furthermore, accepting the argument that the INT’s records should be presumed relevant because first party documents were lost or not created, would require a significant change to the O’Connor framework. Such a change is not necessary. Any loss of information must be addressed through the remedial framework set forth in R. v. La, [1997] 2 S.C.R. 680, which may well be the appropriate framework for addressing any prejudice resulting from the World Bank Group’s assertion of its immunities. The accused did not argue these issues on this appeal, and they are best left to the trial judge.

23 November 2015

No, that headline isn't the name of a movie starring Ben Affleck. The BBC has posted recent video and radio interviews with Benjamin Ferencz, the last surviving lawyer who was involved in the post-WWII core crimes prosecutions in Germany (specifically the famous Einsatzgruppen Case). Ferencz made a number of contributions to the ICL literature over the years, and is definitely worth listening to.